In re D.L.A.D., 375 N.C. 565 (2020)

There is a dissent
Earls, J.
  • Facts: In 2015, father was granted custody of the juvenile in a civil custody order, after the child came for visits to father with soiled, torn, and improperly fitting clothes and excessive earwax in his ears. Mother had also tested positive for drugs. Supervised visits with mother stopped. Father initiated this TPR against respondent mother, which was granted. Respondent mother appeals, challenging the ground of neglect. Mother does not challenge the court finding of past neglect but does challenge the likelihood of future neglect.
  • Neglect requires a showing of neglect as defined by G.S. 7B-101(15) at the time of the TPR hearing (current neglect) or if the child has been separated from the parent for a long period of time, a TPR for neglect must be based on a showing of past neglect and a likelihood of future neglect by considering the evidence of changed circumstances given the history of neglect by the parents between the time of the past neglect and the TPR hearing.
  • The findings of fact are supported by clear and convincing evidence. A finding that there was no evidence that the conditions of mother’s home had changed did not shift the burden of proof to mother. This finding is the court’s expression that mother did not rebut the petitioner’s clear and convincing evidence that conditions of mother’s home had not changed.
  • The findings support the conclusion that neglect would likely continue. Although the trial court based its conclusion on the findings about there being no change in mother’s home, conclusions of law are reviewed de novo.  The appellate court is not limited to that finding but may look at the totality of the trial court’s findings to determine if the conclusion is supported. Mother’s statements to father that she wanted her parental rights terminated and an extended period where a parent does not attempt to visit their child “indicate a future propensity to be inattentive to the child.” Sl.Op. at 11. An untreated substance abuse problem “could inhibit a parent’s capability or willingness to consistently provide adequate care to a child.” Sl.Op at 12. Mother’s recent desire to visit with the child and not have her rights terminated do not outweigh the abundant evidence that demonstrates her lack of capability or willingness to adequately care for the child.
  • Dissent: The findings do not support the conclusion of the likelihood of future neglect. The findings are based on mother’s past conduct and do not consider evidence of changed circumstances at the time of the termination hearing. There is a discussion about past drug use as well as the mere existence of a substance abuse problem and how that alone is insufficient to support a determination of the likelihood of neglect.
Termination of Parental Rights
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